Patrick Zharare v Bonele Sengwayo & 3 Ors

### Preamble
1
HB 130/19
HC 1352/19
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PATRICK ZHARARE

Versus

BONELE SENGWAYO

And

MESSENGER OF COURT BULAWAYO

And

DENMORE TATIRE

And

NOKELS SECURITY COMPANY

IN THE HIGH COURT OF ZIMBABWE

TAKUVA J

BULAWAYO 21 JUNE & 5 SEPTEMBER 2019

Urgent Chamber Application

Applicant in person

S. Tsumele for the 1st and 3rd respondents

TAKUVA J:	Applicant, a self acto,r filed this application titled ‘Urgent chamber application for suspension of eviction and restoration of the application’.  He sought in the interim the following relief:

“1.	That the Respondents jointly and severally, the one acting the other be absolved, be and are hereby ordered to, immediately, unconditionally and at no any other cost to the applicant, upon being served with this order ,open the premises , being house number 32 Amersham Road, Paddonhurst, Bulawayo, and allow the applicant, his minor children and property move into the house and serve them from the extremely cold weather”.

Applicant claims to have been unlawfully evicted from house no. 32 Amersham Road Paddornhurst where he was a lessee. The illegality according to him emanated from the absence of a court order or writ of execution. He alleged further that no notice was given before the eviction was effected. As to how he became a tenant at the property in dispute, applicant in paragraph 18 of his founding affidavit said he had a separate arrangement from the previous tenant whom he does not even know. In paragraph 20 of the same affidavit he states;

“20.4 	If the Applicant is not allowed back into the house where he was illegally and unlawfully kicked out his healthy will be greatly compromised as well as exposing the loop holes which allows manipulation of financial systems by some of its officers such as carrying out eviction without any court order which is tantamount to putting the law into their hands. Already, the applicant’s daughter who was thrown out of the house naked is seriously ill and need the comfort of the home during her recovery period.”

The 1st and 3rd respondents opposed the application on the grounds that;

1.	The eviction was lawful as it was carried out pursuant to an order of court under MC 4094/18.

2.	A writ of execution was subsequently issued against the tenant one Letwin Moyana and all those claiming occupation through her.

3.	A rule nisi obtained by the applicant suspending the eviction was discharged by a Magistrate on 30 May 2019.

In order to assess the merits and demerits of this application it is necessary to outline the background facts. They are the following;

1.	On 30 August 2016, 3rd respondent, through his estate agents Ken Estate Agents, leased out his house being number 32 Amersham Avenue Paddonhurst, Bulawayo to one Letwin Moyana (Letwin), on agreed terms and conditions set out in the lease agreement marked as Annexure ‘OPI’

2.	Letwin breached the lease by failing to pay rent timeously resulting in accumulated arrear rentals in the sum of $5 254.16 as of May 2018. Miffed by this breach, 3rd respondent caused summons to be issued in the Magistrates’ Court against Letwin for the recovery of arrear rentals and for her eviction. Letwin entered an appearance to defend and filed further pleadings. When the matter was set down for a pre-trial conference, Letwin decided not to attend and 3rd respondent obtained a default judgmentt.

3.	Armed with a default judgment 3rd respondent caused a writ of ejection and execution to be issued on 26 February 2019 for the eviction of Letwin and all those claiming occupation through her from number 32 Amersham Avenue Paddornhurst, Bulawayo and for the recovery of the arrear rentals.

4.	Letwin was served with the notice for eviction on 4 March 2019.  The eviction itself was set for 8 March 2019 and on that day, after the full eviction had already been carried out, applicant served the 2nd respondent the Messenger of court with an ex-parte application purportedly suspending or staying the execution. Applicant took the law into his own hands by breaking the keys and restored himself back into the property.

5.	Respondent filed a notice of opposition urging the court to discharge the rule nisi. After hearing argument, the court discharged the rule nisi – see annexures “OP3”, “OP5” and “OP6” respectively.  The ruling contains an obvious error in that instead of the parties being cited as Patrick Zharare as the applicant and Denmore Tatire as the respondent, the parties were cited as “Denmore Tatire” as the applicant and “Letwin Moyana” as the respondent.  Applicant confirmed that he was indeed the applicant in that matter by noting an appeal against the ruling.  Quite clearly, applicant hoped that the appeal would reinstate the discharged rule nisi.

6.	Upon discharge of the rule nisi 3rd respondent through his legal practitioners instructed the Messenger of Court to proceed with the eviction of Letwin and all those claiming occupation through her.  Full eviction was then carried out by the Messenger of Court on 24 May 2019.  Upon the Messenger of Court’s departure, the applicant placed his property back into the house.  The applicant had to be evicted for the 2nd time and only remained outside after a security guard from the 4th respondent had been posted to the house.

7.	On 29 May 2019 applicant filed yet another ex parte application with the Magistrates’ Court, this time saying it was for spoliation.  Respondents opposed it and it was subsequently dismissed – See annexures “OP7”, “OP8” and “OP9”.

The issue is a simple one.  It is whether or not the applicant is entitled to the interdict he seeks.  For him to be so entitled he must establish on a balance of probabilities the requirements of an interdict.  This area of the law is well settled in that the law requires that an applicant for such temporary relief must show;

“(a)	 that the right which is the subject matter of the main action and which he seeks to protect by means of interim relief is clear or if not clear, is prima facie established, though open  to some doubt.

(b)	that if the right is only prima facie established, there is a well grounded apprehension of irreparable harm to the applicant if the interim relief is not granted and he ultimately succeeds in establishing his right.

(c)	that the balance of convenience favours the granting of interim relief; and

(d)	that the applicant has no other satisfactory remedy”.  See Airfield Investments (Pvt) Ltd v Minister of Lands & Ors 2004 (1) ZLR 511 (S).

In casu, the applicant alleges that his right not to be illegally or unlawfully evicted has been infringed and will continue to be violated by the respondents.  C.B. Prest, The Law and Practice of Interdicts, Juta & Co 1993 at p 52 while discussing “rights” as the basis of interdicts states:

“Interdicts are based upon rights, that is, rights which in terms of the substantive law are sufficient to sustain a cause of action.  Such right may arise out of contract, or delict, it may be founded in the common law or on some or other statute; it may be a real right or a personal right.  The applicant for an interlocutory interdict must show a right which is being infringed or which he apprehends will be infringed, and if he does not do so, the application must fail.” (my emphasis)

The right must not be a mere moral right, it must be a strict legal right prima facie established through open to some doubt.  The establishment of a prima facie right or a prima facie case, is the basis according to the traditional approach of the threshold test which had to be satisfied by the applicant in order to succeed in his application for an interim interdict.  The onus is on the applicant and the court has to examine the affidavits placed before it by the applicant in order to determine whether or not the applicant has made out a prima facie case and there by establishing a prima facie right.  This therefore is the threshold that must be crossed and a failure so to do means that an applicant cannot succeed in his claim.

In the present matter the applicant has no prima facie right to remain in occupation of the house for various reasons.  The first is that he has no written or oral lease agreement with the owner of the house.  He has given two conflicting explanations in respect of the basis of his occupation.  Initially, he said he occupied the house under an “arrangement with the previous tenant” he does not even know.  Later he said he occupied the house in terms of a verbal lease agreement he entered into with the owner.  His explanation on how he identified the house and its owner as outlined above is not only highly improbable but outright false.  It is false because there is on record incontrovertible evidence that applicant is related to Letwin.  It is highly improbable that Letwin would enter application to defend, file all other pleadings, fail to attend the pre-trial conference and does nothing about it.  What I find to have happened is that it is the applicant who entered application to defend but would not for obvious reasons attend the pre-trial conference.  If he had done so, the magistrate would have asked him who he was and what interest he had in the matter.  The pre-trial conference was the checkmate - “game over” for the applicant.

Unpertubed by this dead-end applicant somersaulted and filed an ex parte application for stay of eviction.  The rule nisi was granted but later discharged.  Again undeterred, he noted an appeal under HCA 25/19, respondents proceeded to have applicant evicted by the Messenger of Court on 24 May 2019.  This prompted applicant to file an ex parte application for “spoliation relief”.  This application met the same fate as the previous one in that it was dismissed with costs on 6 June 2019.  Applicant then filed this urgent chamber application.

The applicant, unfortunately claimed to have a prima facie right because of the notice of appeal which according to him “invalidated any other order on the applicant thereby staying his eviction …”.  This is an erroneous view of the law in that unless a fresh application for an interim interdict is made, an appeal against a discharge of a provisional order does not revive that provisional order – see Women In Law In Southern African Research and Education Trust & Ors v Dinah Mandaza HH-35-04.

Applicant’s claim that there exists an oral lease agreement is unsubstantiated in that;

Applicant failed to provide proof that he paid a certain amount to liquidate the alleged ZESA bill.

He failed to produce a single invoice or statement from ZESA showing that there were outstanding amounts to be paid by 3rd respondent.

Applicant did not in all his pleadings divulge 3rd respondent’s telephone number or address he used to contact 3rd respondent in Australia.

Applicant does not reveal how he was able to evict the so called “vagabonds” from the house.

Applicant’s denial of any link or relationship to Letwin is not only bald but false and misleading in light of the endorsement of his correct particulars including this cellphone number on Letwin application form.

The owner of the property (3rd respondent) has sworn positively that he does not know the applicant and has never allowed him to occupy his house.

Applicant cannot possibly claim to be a statutory tenant as he is currently not paying any rent for the property.

Other than giving a fairy tale on the evidence of a lease agreement between him and 3rd respondent applicant has dismally failed to show on the facts he placed before the court that a lease agreement exists and that he is entitled to exercise his rights in connection with the oral lease agreement.

In view of the above I find that the applicant has no right whatsoever to protect.  In the result, there is no need to discuss the rest of the requirements for an interdict.

As regards costs, it is trite that costs follow the result.  However, in this case, I agree with respondent’s counsel that the applicant’s conduct warrants an order of costs at a higher scale since it amounts to an abuse of process.  The applicant’s behaviour amounts to stubbornness bordering on vexatiousness which is highly reprehensible.  Despite knowledge of the correct facts, applicant proceeded recklessly to file application after application against the respondents putting them out of pocket unnecessarily.  A close reading of applicant’s pleadings leaves me in doubt that if left unchecked, the applicant will drift towards being a good candidate for a decree of perpetual silence.  In order to assist him realise that the court is not a place to bring frivolous and vexatious claims, he must be ordered to pay costs at a higher scale.

Accordingly, the application is dismissed with costs as between attorney and client scale.

Dube-Banda, Nzarayapenga & Partners, 1st & 3rd respondents’ legal practitioners